General Terms and Conditions of Sale of Dutchspares
Article 1. Definitions
In these General Terms and Conditions, the following meaning will be allocated to the following terms:
(i) General Terms and Conditions: these General Terms and Conditions of Sale of Dutchspares;
(ii) Dutchspares: a partnership under Dutch Law, having its statutory seat and holding its offices at Bolderweg 72 F, 8243RD Lelystad, the Netherlands;
DutchSpares, also trading under the name Parts4GSM
Phone number: +31 (0)320 820 994
E-mail address: [email protected]
Number in trade register: 71275606
VAT identification number: NL858647035B01
(iii) Principal: each natural or legal person that to Dutchspares, in its capacity as re-seller and/or business Principal, grants commission to the delivery of goods;
(iv) Parties: Principal and Dutchspares jointly; each separately: “Party”;
Article 2. Applicability of the General Terms and Conditions
- These General Terms and Conditions are applicable to all legal relations including deliveries, designated offers, order confirmations and/or agreements with Dutchspares.
- Dutchspares can only be held to deviations from these General Terms and Conditions, if these have been agreed in writing.
- All natural or legal person affiliated to Dutchspares, involved by Dutchspares in the execution of the agreement, can make a claim on these General Terms and Conditions.
- General Terms and Conditions of Principal are not applicable on all legal relations with Dutchspares, unless agreed in writing.
- If and insofar one or more stipulations from these General Terms and Conditions are invalid, eligible for invalidation, or shall otherwise be deemed not applicable by intervention of the courts, the other stipulations of the General Terms and Conditions remain in force without restriction, and parties shall have to come in mutual consultation to a different stipulation, that agrees as much as possible with the invalid or invalidated stipulation.
- Principal, with whom a legal relation exists, to which these General Terms and Conditions are applicable, agrees with the applicability of these General Terms and Conditions to later agreements between parties.
Article 3. Designated offers, offers and agreements
- All designated offers and/or offers made by Dutchspares are non-binding. Orders and acceptations of designated offers and/or offers by Principal are regarded as irrevocable.
- Only if Dutchspares accepts any commission of Principal in writing, or has started with the execution, an agreement with Dutchspares has been concluded. Insofar Dutchspares has sent no order confirmation to Principal, then the content of the agreement will be determined by the commission, the custom (between parties) and these General Terms and Conditions.
- Possible documents delivered along by others than Dutchspares, including but not exclusively, technical specifications, quality norms, designs and/ or drawings, do not bind Dutchspares, except for and insofar that is agreed in writing. Slight deviations cannot be held against Dutchspares.
- Returning and/or crediting of goods ordered to many or erroneously, shall only take place with written permission of Dutchspares.
Article 4. Delivery
- Delivery takes, unless agreed otherwise, place from the warehouse in Lelystad, or a place to be determined further by Dutchspares. If Principal does not or not timely give instructions concerning the manner of shipment, then Dutchspares is free to make a choice by itself concerning the transporter and the means of transport. Dutchspares is also free to deliver and to invoice each commission in parts.
- The risk of the delivered goods is transferred to Principal on the moment of actual delivery.
- On the moment, on which the goods will be delivered to Principal, or the moment on which these according to the agreement, will be made available to Principal, then he is obliged to accept these.
- In case of refusal to acceptance and/or negligence with the provision of information and/or instructions which are necessary for the delivery, or goods that cannot be transported to the place of destination by causes independent of the will of Dutchspares, then these goods shall be stored for the account and risk of the Principal. Principal agrees in that case with compensation to Dutchspares of all additional costs, including in any case storage and transport costs.
- Dutchspares strives as much as possible for delivery within the stated delivery times. Stated delivery times shall, however never be regarded as fatal terms, unless explicitly agreed in writing otherwise. Upon non-delivery, Principal must declare Dutchspares in writing in default, whereby a reasonable term is granted to deliver after all, whereby a reasonable term is granted, to deliver after all. If and insofar no delivery takes place within this term, then Principal has the right to dissolve the agreement, without that any right to compensation of damages exists.
Article 5. Samples, models and examples
- If by Dutchspares a sample, model or example has been shown or provided, then this will be assumed to have only been shown or provided by manner of designation: the characteristics of goods to be delivered, may deviate from the sample, model or example, unless explicitly was stated that would be delivered according to the shown or provided sample, model or example.
Article 6. Purchase price
- Concerning all legal obligations between Dutchspares and Principal, applies that the purchase price is based on the Euro. If invoicing takes place in a currency other than the Euro and between the moment of conclusion of the agreement and the delivery, a change in the exchange rate has occurred, then Dutchspares will be authorised to review of the original purchase price in the applicable foreign currency.
- All stated prices are exclusive of VAT or other local taxes or levies.
- Notwithstanding the stipulations in this Article, each sale takes place under the explicit condition that the price (prices) is (are) based on the price determining factors at the time of the conclusion of the sale. If and insofar, between the moment of conclusion of the agreement and the delivery, changes might occur in the aforementioned price determining factors (including, but not solely; increases of and/or surcharges on the freight rates, reference prices, import duties, customs or other levies, taxes and/or purchase prices), then Dutchspares is authorised to proceed to review of the original asking price.
- Principal has the right to dissolve the agreement, in the case that the price increase amounts to more than 20%, without that Principal because of it, will acquire any right to compensation of damages.
Article 7. Warranty
- Dutchspares warrants that the goods delivered by it, are free of design, materials and manufacturing errors during a period of 3 months after delivery, unless agreed otherwise.
- If Dutchspares decides, that Principal rightfully claims under warranty, then Dutchspares shall repair or replace the good. The choice for replacement or repair of goods that fall under the warranty, is fully reserved to Dutchspares.
- The warranty does not apply, if damage is the consequence of an incorrect treatment.
Under incorrect treatment will be understood among others but not exclusively: the exposure of the good to electrical tensions higher than customary for this good, rough treatment; use at temperatures above 35 degrees Celsius or under -10 degrees Celsius.
- Dutchspares is not required to other warranties neither explicitly, nor implicitly, otherwise than that will be given in the agreement with Principal or in these General Terms and Conditions. In particular, Dutchspares rejects possible implicit warranties of saleability and purpose, as well as the lawful warranties on hidden defects, the one and the other insofar permissible by law.
Article 8. Testing and reclamations
- Principal is obliged to test the purchased and taken-off goods upon delivery each time immediately. In particular, Principal must verify whether the delivered complies with the agreement being:
- whether the correct goods have been delivered;
- whether the delivered goods concerning quantity, comply with what is agreed;
- whether the delivered goods comply with the agreed quality requirements or - if these are absent - with the requirements that may be set for a normal use and/or trade purposes;
- Principal is obliged to inform Dutchspares in writing within five working days after delivery, whether visible defects or shortages have been established.
- In case of invisible defects, Principal must inform Dutchspares in writing within five working days after discovery, but no later than within three months after delivery.
- Despite timely reclamation, Principal remains obliged to payment and take-off or already ordered goods. Only after prior written permission by Dutchspares, goods can be returned.
Article 9. Liability
- Dutchspares is not bound to warranties and terms and conditions that have not explicitly been included in these General Terms and Conditions and/or in the agreement.
- Hereby, Dutchspares explicitly excludes the applicability of all warranties and terms and conditions regarding the goods that possibly could form part of an agreement in force between parties, based on among others the law, applicable regulations in the country where Principal has taken off the goods, opinions in trade or custom (including, but not solely limited to those regarding the quality and the suitability for a certain purpose, reasonable care and expertise), the one and the other insofar allowed to a maximum under the applicable law of the country, in which the goods have been taken-off by Principal. In particular, Dutchspares bears no responsibility for the suitability of the purchased goods for the objectives of the Principal.
- Dutchspares hereby explicitly excludes liability of Dutchspares, its directors, functionaries and employees, (legal) persons affiliated to Dutchspares, (i) for direct or indirect, incidental, consequential damage, (ii) damage because of death or bodily harm by wilful intent or gross fault of Dutchspares, (iii) fraud, (iv) the non-compliance with certain obligations because of lawful stipulations regarding properties, (v) any form of liability insofar those lawfully cannot be excluded.
- In view of the stipulations in section 3 of this Article, Dutchspares is not liable for any loss of income, of profit, of contracts, or for any other subsequent damage, deriving from default, illegal act or otherwise.
- In view of the stipulations in section 3 of this Article is in all instances the entire liability of Dutchspares based on the agreement and these general stipulations – irrespective of whether it derives from default, illegal act or otherwise - limited to the amount that Principal has paid for the concerned good(s).
- The liability of Dutchspares shall, in the countries where no claim can be made on exclusion and/or limitation of liability, always be limited insofar that is allowed to the maximum under the law.
- Principal hereby safeguards Dutchspares explicitly for all claims of third parties (because of product liability) due to a defective good delivered by Dutchspares to Principal, unless there is an instance of damage as a consequence of wilful intent or conscious recklessness on the side of Dutchspares Principal safeguards Dutchspares also for all other claims of third parties, such as regarding intellectual property rights.
- Each claim against Dutchspares shall expire in each case one year after the emergence thereof.
Article 10. Payment
- Objections against invoices must be made known within two working weeks after the date of the invoice in writing to Dutchspares. In no case shall the objections suspend the payment obligation. In case of correctness of the objections showing later, Dutchspares shall proceed to settlement.
- Dutchspares is always authorised to require cash payment and/or advance payment or surety for payment of the due amounts.
Article 11. Retention of property and (silent) right of lien
- The property of all by Dutchspares goods sold remains with Dutchspares as long as Principal:
- has not complied with his payment obligations based on the agreement or similar agreements, and/or;
- the has not complied with the executed to yet to be executed activities from the agreement, and/or;
- the claims of Dutchspares because of coming short in the compliance with such an obligation, including claims concerning fines, damage, interest and costs;
- Principal has no right of retention on the goods delivered by Dutchspares under retention of property.
- In addition to the first section of this Article, Principal commits himself to, on first request thereto of Dutchspares, to reserve a possession less right of lien, and insofar necessary, to vest it on the goods delivered by Dutchspares to the Principal in property, as surety of all existing and future claims of Dutchspares on whichever basis.
- Principal is fully liable for the goods delivered under retention of property and shall keep these with the necessary care and as recognisable property of Dutchspares.
- In no case, Principal may give a right of lien on the delivered goods to a third party, or vest any other right thereon, as long as the property of the delivered goods has not been transferred to Principal. Dutchspares however does allow that Principal delivers the goods delivered under retention of property in the framework of the normal execution of the enterprise of Principal, to third parties.
- If Principal comes short in the compliance with his payment obligations towards Dutchspares, or Dutchspares has good ground to assume, that Principal shall come short in those obligations, then Dutchspares is authorised to take back the goods delivered under retention of property, without that any notification of default or intervention of the courts is required. In such a case, the underlying agreement is dissolved without intervention of the courts and leaves unaffected the right of Dutchspares to claim compensation of damages.
- Principal is obliged to grant Dutchspares or a third party designated by Dutchspares access, to the places where the goods delivered under retention of property are located.
- If and insofar third parties want to vest or claim any right on the goods delivered under retention of property, then Principal is obliged to notify Dutchspares thereof in writing as soon as reasonably may be expected.
Article 12. Dissolution
- Dutchspares is authorised to suspend the agreement with Principal, or to dissolve without prior notification of default in whole or in part if:
- a) Principal does not, not timely or not properly complies with one or more of his obligations;
- b) Principal will be declared in a state of bankruptcy, files for suspension of payment, proceeds to cessation or liquidation of his enterprise, offers a settlement agreement, proves to be non-solvent or will be affected by attachment;
- c) there is an instance of change or control at Principal;
- d) of Dutchspares in reasonableness, continuation of the agreement may not be expected;
- e) there is an instance of Force Majeure.
- Dutchspares retains in the instances under section 1 of this Article, the right to compensation of damages without restriction, Furthermore, in the instances under section 1, each claim of Dutchspares on the Principal will be payable upon demand directly and fully without that thereto any written or verbal announcement by Dutchspares is required.
- If and insofar Principal terminates an agreement with Dutchspares in whole or in part, Principal is liable to pay to Dutchspares the cancellation costs, which costs amount to 25% of the value of the underlying agreement(s). In addition, Dutchspares has the right to charge made and yet to be made costs to Principal, and to claim compensation of damages, including missed profit. Principal has no right to restitution of amounts possibly paid to Dutchspares, unless it shows that these exceed the scope of the costs and compensation of damages.
Article 13. Force Majeure
- There is an instance of Force Majeure at the side of Dutchspares, if Dutchspares after the conclusion of the purchase agreement will be impeded to comply with its obligations from this agreement or with the preparation thereof, as a consequence of war, danger of war, civil war, terrorism, uprising, molest, fire, water damage, flooding, work strike, enterprise occupation, exclusion, import and export impediments, government measures, defects to machines, disruptions in the delivery of energy, all both in the enterprise of Dutchspares and with third parties, of whom Dutchspares has to source the required materials, as well as in case of storage or during transport, whether or not under own management, and furthermore all other causes, emerged outside the fault or the sphere of risk of Dutchspares.
- Dutchspares also has the right to claim Force Majeure, if and insofar the circumstance that impedes compliance, emerges after Dutchspares should have complied with its obligation.
- If there is an instance of Force Majeure, the delivery and other obligations of Dutchspares will be suspended. If the period in which compliance with the obligations of Dutchspares by Force Majeure is not possible, lasts longer than two months, then both parties are authorised to dissolve the agreement, without that in that case an obligation to compensation of damages shall emerge.
- If Dutchspares at the time of the emergence of the Force Majeure has already complied with its obligations, or has only partially complied with its obligations, then Dutchspares retains the right to invoice for the delivered part separately, and Principal is required to pay this invoice, as if it concerned a separate agreement.
Article 14. Applicable law
- All legal obligations between Dutchspares and Principal and these General Terms and Conditions are subject to the Laws of the Netherlands.
- The applicability of the Vienna Purchase Treaty will be excluded.
Article 15. Competent court
- All disputes which might emerge between parties, further to their agreement or to further agreements and other acts in correlation with the present agreement such as for instance, but not exclusively, illegal acts, undue payments and unjustified enrichments, shall be resolved by the competent court of the court in Lelystad, under which Dutchspares resorts, such except for insofar mandatory rules of competence would stand in the way of this choice.